The White House today decided to start publishing the names of White House visitors, ending two lawsuits seeking Secret Service visitor logs under the Freedom of Information Act. It's a nice gesture, but that's just about all it is.
The change is a deal with Citizens for Responsibility and Ethics in
Government Washington, which agreed to drop two FOIA lawsuits in exchange for a promise that the White House would start releasing the names. The new White House policy [pdf], which is voluntary, will be to release visitor logs on a monthly basis, with the exception of visits that were private in nature, related to national security, or related to other "sensitive" issues, like potential Supreme Court nominees.
That's all well and good, but it's voluntary. The White House will make the determination about which names to release—including which one's are "sensitive"—without recourse to any oversight or appeal, and without the force of law to keep them in line. Do you trust them?
The main issue in CREW's FOIA suits was whether the visitor logs, which are maintained by the Secret Service, are subject to FOIA. The White House is exempt from that law, but the Secret Service, which is an agency under the Department of Homeland Security, isn't. The Obama White House took the Bush view that the logs are somehow really White House records, even thought the White House doesn't maintain them. CREW's view, which has been upheld by two federal courts so far, was that if the Secret Service created and maintained them, then they're Secret Service records, and have to be turned over if someone asks for them under the FOIA.
The Obama White House still insists that the logs are not covered by FOIA, but has decided to generously release those portions of the logs that it chooses to just in order to get CREW off its back. What's the difference? Well, the FOIA has strict protocols for what can and can't be redacted from documents, and an appeals process for requesters to make sure the government isn't holding back. And if they are holding back, it's illegal. The White House's new policy has none of that. They will give out what they want to give out, and you will take it on faith that it's the whole story. And the FOIA has no provision for redacting names or documents because they're "sensitive." What's more, under the FOIA, the decisions about what names would be redacted would be made by the Secret Service. Now they're being made by the White House itself.
"Yes, it's voluntary," CREW's chief counsel Anne Weismann told us. "But I think it would be political suicide for them to retreat from it. We'll see what gets released. I think we'll be able to tell if they're holding back." Weismann points out that the White House has promised to publish the number of names it has redacted because of "sensitive" meetings, so we will get a sense of how much is being held back. And anyone is free, if they think the redactions are overbroad, to launch another lawsuit under the FOIA and finally litigate the issue of whether visitor logs are covered.
But this deal lets the White House promise to comply with the law without actually making it comply with the law. It's like a prosecutor dropping charges against someone who, in exchange, promises to go live in a jail for a year. The FOIA says what it says, and those records—at least according to two federal judges thus far—must be released. To let the Obama Administration get away with claiming that it will do so, without any system for checking that they're not lying—as all White Houses do, all the time—is a sham. It's better than nothing, but it's still a sham.